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constitution Archive

Friday

28

May 2010

0

COMMENTS

School Choice Before The Supreme Court

Written by , Posted in Education, The Courts, Criminal Justice & Tort

Reminding us again how important it is to place judges on the Supreme Court that actually adhere to the doctrine that the Constitution is the law of the land, another important case is before the court.  The Ninth Circuit wrongly sided with the teacher’s unions and others with a vested interest in defending education’s status quo of failure, but now the Supreme Court has a chance to correct this error.

From an Institute for Justice press release:

…This week, the Court agreed to decide whether Arizona’s scholarship tax credit program violates the Constitution’s Establishment Clause.  That will thrust school choice back into the national spotlight to a degree not seen since 2002, when IJ defended the Cleveland school choice program in Zelman v. Simmons-Harris, a case in which the U.S. Supreme Court ruled that vouchers are constitutional.

…The ACLU claims that the state, by giving taxpayers the choice to donate to both religious and nonreligious School Tuition Organizations, is unconstitutionally advancing religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution because most taxpayers to date have donated to religiously affiliated charities.

Mellor said, “This case is most notable for what it does not involve:  state action advancing religion.  Arizona structured its tax credit program to be completely neutral with regard to religion.  Neither taxpayers nor parents have any financial incentive to donate to a religiously affiliated scholarship organization over a nonreligious scholarship organization or to select religious over nonreligious schools.”

Thursday

6

May 2010

0

COMMENTS

Gun Rights Still Not Safe Post-Heller

Written by , Posted in Gun Rights

Despite the landmark victory in the Heller case, the constitutional right to bear arms for defensive purposes is still constantly under assault.  New York City mayor Michael Bloomberg recently testified in the Senate over a supposed “terror gap” in gun laws.

New York Mayor Michael R. Bloomberg told a Senate panel Wednesday that he strongly supports congressional efforts to close a “terror gap” in the nation’s gun laws, which currently allow persons on a federal terrorist watch list to buy guns and explosives legally in the United States.

Testifying before the Senate Homeland Security Committee in the wake of the latest alleged terrorist plot against his city, Bloomberg (I) pointed to a new Government Accountability Office report showing that individuals on the terrorist watch list were able to buy firearms and explosives from licensed U.S. dealers 1,119 times over the past six years.

“That is a serious and dangerous breach of national security,” Bloomberg testified. The FBI should have the authority to block such sales, “but right now, they don’t,” he said. “It is time to close this ‘terror gap’ in our gun laws.”

It’s not hard to sympathize with the national security argument here, but I think mayor Bloomberg is wrong for several reasons.

First of all, the no-fly list is notoriously problematic. The list contains over 1 million names, all of which are most certainly not terrorists. Moreover, there is a huge difference between flying and owning a gun. That difference rests primarily with the fact that the latter is an expressly granted constitutional right. Rescinding such rights cannot be done merely by adding someone’s name to a list. If that’s all it takes to void the constitution, then this is no longer a nation of law.

Besides the fact that it’s unconstitutional and places a huge burden on the likely hundreds of thousands of Americans who have found themselves on that list despite lacking any terrorist sympathies, it wouldn’t offer any meaningful protection anyway. The idea that real terrorists wouldn’t be able to purchase guns on the black market is absurd. The end result would be that the people you actually want to restrict access to still get weapons, while law-abiding citizens are forced to deal with another (unconstitutional) burden on their basic freedoms.

This is not the first time an effort has been made to deny Second Amendment rights to citizens arbitrarily placed on some list. Assuming it fails, one can only hope it’s the last.

Friday

2

April 2010

0

COMMENTS

Lefties Claim They Can’t Find Anyone To Argue That Obamacare Is Unconstitutional

Written by , Posted in Health Care, Welfare & Entitlements

The University of Washington held a “debate” over the constitutionality of the health care bill in which none of the participants argued it was at all unconstitutional. Explaining this farce, the university claimed they couldn’t find any law professors to argue the opposing view.  Liberal blogs such as TalkingPointsMemo and Think Progress picked up the story to brag that the left can’t find any law professors to argue that Obamacare is unconstitutional. Clearly they haven’t looked hard enough.

Cato Institute legal scholar Ilya Shapiro, who is also an adjunct professor at George Washington University Law School, has issued a simple challenge. He’ll debate the constitutionality of Obamacare “anywhere at anytime.”

It’s not as if he’s the only one. Randy Barnett teaches constitutional law at Georgetown University and recently wrote in the Washington Post about different possible challenges to Obamacare. He concluded that several “constitutional challenges to health-care reform have a sound basis in the text of the Constitution.” Richard Epstein, of the University of Chicago, is another well-known skeptic of the bill’s constitutionality, and several months ago authored a piece explaining why in the Wall Street Journal. There are plenty more.

Here’s the $64,000 question. If the brilliant scholars at the University of Washington couldn’t properly conduct a basic search to find any of the numerous legal scholars who find Obamacare unconstitutional, how seriously can they possibly expect us to take their legal scholarship?

Cross-posted at Big Government

Wednesday

24

March 2010

0

COMMENTS

The Conyers Clause

Written by , Posted in Health Care, Welfare & Entitlements

CNSNews asked John Conyers, Chairman of the Judiciary Committee, to justify the Constitutionality of an individual mandate to purchase health insurance.

CNSNEWS: “What part of the Constitution do you think gives Congress the authority to mandate individuals to purchase health insurance?”

Rep. Conyers: “Under several clauses. The good and welfare clause, and a couple others.”

Rep. Conyers, who has a law degree, made up this clause.  There is obviously no “good and welfare clause.”

Nor can we be comforted that this might just be a slip of the tongue.  The General Welfare Clause, to which he may have intended to refer, does not grant any actual powers to Congress.  Rather, and contrary to popular understanding, it is a restriction on the powers granted elsewhere, preventing them from being used to advance a specific or special interest.

The disdain for which the left treats the Constitution is a direct result of the fact that it stands in the way, by design, of their deepest desires for power and control.

Thursday

4

March 2010

0

COMMENTS

Well, It Is The 9th Circuit

Written by , Posted in The Courts, Criminal Justice & Tort

An Obama judicial appointment has troubling views on the Constitution:

Liu opponents point to a number of his writings, including a book he co-authored in 2009 called “Keeping Faith with the Constitution,” in which the authors opine about their concept of judicial interpretation.

“Applications of constitutional text and principles must be open to adaptation and change … as the conditions and norms of our society become ever more distant from those of the Founding generation.”

That theme — that the Constitution’s text and principles must be adapted to changes in the world — repeats throughout the book and raises eyebrows among conservatives.

It is imperative to combat such dangerous views wherever they arise.  Yes, some principles change over time.  Others, including many captured by both the Declaration of Independence and the Constitution, are timeless.  But for those principles that might change, the Constitution provides a process for dealing with that: amendments.

It’s an entirely different beast to say that the application of the constitution changes.  The principles of the Constitution should be simply applied as they are.  Believing differently raises an obvious question, which in the end should reveal the fault of this view.  Who decides how the application changes?  The answer, as we have seen to our detriment over the last 80 years or so, is that the court decides.

Allowing the Supreme Court to bring the Constitution into alignment with changing principles removes the people from the democratic process.  This is why the Constitution was given an amendment process – so that it could maintain its principled timeliness, but still be of, by and for the people.constitution

Friday

23

October 2009

1

COMMENTS

Nancy Pelosi: Constitutional Questions Are Not Serious

Written by , Posted in Health Care, Welfare & Entitlements

Every piece of legislative problem solving ought to start by answering a simple question: under what Constitutional authority do we act?  Given that the Constitution is a document of enumerated powers, a specific empowerment should be found to support the action. Not only does Nancy Pelosi disagree, she and her office thinks it’s ridiculous to even ask:

The exchange with Speaker Pelosi on Thursday occurred as follows:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a “serious question.”

“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

Exit question: Ideally, ought this attitude constitute an impeachable breach of her oath to “bear true faith and allegiance to the [Constitution]?”

Hat-tip: Yid with Lid

Wednesday

30

September 2009

1

COMMENTS

Gun Rights Back Before The Supreme Court

Written by , Posted in Gun Rights

A year after the Heller decision found an individual right to bear arms, the Supreme Court is again considering the question of gun rights. The court granted cert. in McDonald v. City of Chicago, and will hear the question of whether or not the 2nd amendment applies to the states, and not just the federal government, through the process of incorporation via the 14th amendment.

Alan Gura, who successfully argued the Heller case, will be the lead attorney on the side of McDonald, a resident of a high-crime Chicago neighborhood whose application for a gun permit was turned down by the city with arguably the toughest restrictions in the country.

Wednesday

30

September 2009

0

COMMENTS

Congress Looks To Muzzle Internet Over Cyber Bullying

Written by , Posted in Legislation, The Nanny State & A Regulated Society

The biggest bullies in America, collective referred to as Congress, are tackling the issue of cyber bullying.  Their solution? An all out assault on the first amendment via the Megan Meier Cyberbullying Prevention Act:

‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

‘(b) As used in this section–

‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.

What could possibly go wrong with such a broad piece of legislation? Some of the things I seek to do with this blog could hypothetically be described as: intimidating politicians into actually obeying their oath to defend the Constitution, harassing corrupt officials into complying with the law, and causing substantial emotional distress to those politicos who think that mortgaging our children’s future is a viable means to achieve reelection.

In other words, you can pry the keyboard from my cold, dead fingers.

Monday

21

September 2009

0

COMMENTS

ACORN Has No Right To Taxpayer Funds

Written by , Posted in Waste & Government Reform

A curious item in Politico today suggests that there might be a constitutional challenge to the recently passed Defund ACORN Act:

Article 1, Sections 9 and 10, of the Constitution explicitly prohibit the passage of “bills of attainder”: legislation targeted to benefit or penalize an individual or group, most often by excluding it from government service.

Does the House’s Defund ACORN Act, which passed 345-75 last week, constitute a bill of attainder? The case law on the issue is inconclusive, but it’s provided a glimmer for ACORN’s diminishing cadre of defenders.

A bill of attainder is basically a congressional finding of guilt.  Congress could not, for instance, determine that Joe Bob committed treason and then send him to hang.  That’s properly considered a judicial function.

There is no application to the present situation. Congress has neither concluded guilt nor imposed punishment on ACORN. As is so often said, Congress has “the power of the purse,” which means they have the authority to fund constitutionally permitted programs and policies as they see fit. They also must have the authority to defund them. Moreover, they can do so at their prerogative without offering any sort of explanation beyond what their constituents demand.

Some seem confused by the fact that Congress acted on the appearance of criminality by ACORN. Therefore, they conclude, ACORN was “punished” by having its funding revoked without a trial.  This is mistaken. While it was the appearance of criminality that politically forced the hand of Congress, the actual commission of a crime was not relevant to the legality of the legislation. They no more had to conclude ACORN’s guilt of anything than they would have to first show the commission of a crime before halting funding for the F-22, or any other government program. It was more than enough that Congress had finally lost faith in the ability of ACORN to carry out its charge in receiving federal dollars.

As it works with government agencies ACORN is expected to execute certain functions with a degree of competency. Congress has a responsibility for oversight to ensure that they fulfill these obligations.  Their determinations are not the equivalent of criminal findings as dealt with by bills of attainder.

Thursday

17

September 2009

1

COMMENTS

Is Conservatism Dead?

Written by , Posted in Liberty & Limited Government

That’s the question being asked by many discussing Sam Tanenhaus’ new book, The Death of Conservatism. As he’s now making the rounds, it’s difficult to avoid the discussion.  His ultimate prescription of a content-free conservatism is so obviously self-serving for the liberal agenda that I’m not going to waste time addressing it.

A more interesting point I’ve seen him make is the contention that today’s conservatism, and I assume that he’s using the word in a broad sense to encapsulate the totality of small government movements, is lacking in heavyweight intellectuals like William F. Buckley, Jr.  I think he’s looking in the wrong places.

No, there is no one like Buckley in the conservative movement today. Nor is there a Reagan. This is less reflective of the state of conservative intellectualism than it is the fact that the two giants were irreplaceably unique.

Tanenhaus, like many in D.C. circles, looks only in two places for intellectual contributions: Washington, D.C. and the Ivory Tower. In his view, events like last week’s D.C. Tea Party are the result of unsophisticated if not outright moronic masses lashing out because they lack enlightened leadership. I think he’s got it all wrong.

Where he sees no intellectual leaders, I see millions. Thanks to the advances of technology, leadership is no longer confined to positions of great power or influence. With instant communication, political movements are finally able to arise via spontaneous order, the process by which common languages developed or markets function. Direction need not come from on high when outcomes are emergent.

As an example of the kind of intellectualism I see in conservatism, let me recount a short story from my trip to the D.C. Tea Party. As is my habit, I left the event a bit early to avoid the rush out of town, though there were still plenty other folks on the metro with me. A few of them struck up a conversation with a local woman who did not share the views of the marchers, though like them she was respectful and pleasant, taking turns listening and offering her views.

One of the marchers, in the course of a conversation the details of which I do not quite recall, began referencing the Constitution. Specifically, he drew on the manner in which the Commerce Clause has been abused through a misunderstanding of the targets of the clause, as well as the  meaning of the word “regulate” at the time.

Is not such enlightened discourse exactly the model for democratic debate that stuffy elitist types moan is so lacking? Is it accurate or honest to declare a movement with so many such people interested in American constitutional history to be lacking in intellectualism, merely because there is no Ivy League spokesman at the forefront?

Mr. Tanenhaus has asked an important question about a historically significant and influential movement within the American political sphere. It is unfortunate that his cultural blinders have prevented him from seeing the obvious answer.